Gordon Rees Scully Mansukhani Denver Partner Tamara A. Seelman and Senior Counsel Matthew C. Porter recently secured, on behalf of a business-to-business marketing and consulting firm, the dismissal with prejudice of a putative class action brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, in the U.S. District Court for the District of Colorado.
The plaintiff alleged he received multiple text messages in violation of the TCPA’s do-not-call provisions and sought to pursue claims on behalf of a proposed nationwide class. The complaint attempted to extend liability under 47 U.S.C. § 227(c)(5), which provides a private right of action for certain violations of the TCPA’s do-not-call regulations, by contending the challenged text messages constituted prohibited “telephone calls” under the statute.
The GRSM team moved to dismiss the complaint, arguing at hearing that text messages do not constitute “telephone calls” within the meaning of § 227(c)(5), and therefore cannot support a private cause of action under the TCPA’s do-not-call provisions. The Tenth Circuit has not addressed the question yet, making the ruling a notable development for businesses facing TCPA claims in the region.
Relying on existing authority interpreting the statute, the court agreed with GRSM’s position and dismissed the action with prejudice. In doing so, the court rejected the plaintiff’s effort to expand the reach of the TCPA’s do-not-call provisions beyond their statutory text and held that the allegations failed as a matter of law. The ruling resulted in the complete dismissal of the putative class action at the pleading stage, sparing the client the expense and burden associated with class discovery and certification proceedings.